Wickstrom v. Ebert

Citation585 F. Supp. 924
Decision Date05 April 1984
Docket NumberNo. 83-C-2017.,83-C-2017.
PartiesJames P. WICKSTROM, Donald J. Minniecheske, Plaintiffs, Pro Per, v. Steven D. EBERT, Wisconsin Assistant Attorney General, Fred A. Fink, Jr., Wisconsin Assistant Attorney General, J. Douglas Haad, Wisconsin Assistant Attorney General, Wendell Harker, Wisconsin Department of Criminal Investigation, Michael G. Eberlein, Circuit Judge Br. # 1, Shawano County, Wisconsin, Earl W. Schmidt, Circuit Judge Br. # 1, Shawano County, Wisconsin, Garry R. Bruno, District Attorney, Shawano County, Wisconsin, Betty Redman, Register of Deeds, Shawano County, Wisconsin, John Does & Jane Roes (No's 1-50), et al., Defendants.
CourtU.S. District Court — Eastern District of Wisconsin


James P. Wickstrom, Tigerton, Wis., pro se.

Donald J. Minniecheske, pro se.

Charles A. Bleck, Asst. Atty. Gen., Madison, Wis., for Harker, Ebert, Fink, Haag, Eberlein, Schmidt, Grover (John Doe No. 1) and LaFollette (John Doe No. 4).

Stuart B. Eiche, deVries, Vlasak & Schallert, Milwaukee, Wis., for Bruno and Redman.


WARREN, District Judge.

Presently before the Court are the several motions to dismiss filed by the ten named defendants in this case. Because the Court concludes, as stated herein, that the doctrines of judicial, prosecutorial, and witness immunity and the limitations on the scope of 42 U.S.C. § 1983 preclude the plaintiffs from maintaining the present action for alleged violations of their constitutional rights, the defendants' motions to dismiss must be granted. In addition, the movants will be awarded their costs incurred in defending this action to date.


As the Court recounted in its Decision and Order of February 8, 1984, plaintiffs filed their complaint in this action on December 28, 1983, seeking monetary damages for alleged deprivations of their constitutional rights, in violation of 42 U.S.C. § 1983. 101 F.R.D. 26. Plaintiffs' principal allegations arise out of the state criminal prosecutions against them for violations of Wis.Stat. § 946.69(1), making it unlawful for one not a public officer or employee to assume to act in an official capacity.

On January 16, 1984, defendant State Circuit Court Judges Michael G. Eberlein, Earl W. Schmidt, and Thomas G. Grover moved for dismissal of the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, on the basis that the present action against them is barred under the doctrine of judicial immunity. One day later, on January 17, 1984, defendants Gary R. Bruno, Shawano County District Attorney, and Betty Redman, Shawano County Register of Deeds, filed a motion for a more definite statement of plaintiffs' complaint pursuant to Rule 12(e) of the Federal Rules of Civil Procedure or, in the alternative, to dismiss the action pursuant to subsections (1), (4), & (6) of Rule 12(b), on the grounds that the Court lacks jurisdiction over the subject matter, that service of process was insufficient, and that the complaint fails to state a claim upon which relief can be granted.

On January 24, 1984, defendant Assistant Attorneys General Steven D. Ebert, Fred A. Fink, Jr., and J. Douglas Haag likewise moved to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, in their case on the basis that the action is barred under the doctrine of prosecutorial immunity. On February 2, 1984, defendant Wendell Harker, special agent in the Criminal Investigation Division of the Wisconsin Department of Justice, filed the fourth motion for dismissal in this case, also pursuant to rule 12(b)(6), on the grounds that the suit is barred by both prosecutorial and witness immunity.

Finally, on February 10, 1984, Wisconsin Attorney General Bronson LaFollette moved to dismiss under Rule 12(b)(6) on the basis that liability cannot attach to him for any violation of 42 U.S.C. § 1983 since he was not personally involved in plaintiffs' state criminal prosecutions.1

In its order of February 8, 1984, the Court, in the interest of promoting a full and fair exposition of the issues raised by defendants' motions and in their supporting briefs, granted the plaintiffs an enlargement of time up to and including February 24, 1984, in which to file and serve a response. At the start of its hearing on February 21, 1984, the Court again noted that plaintiffs were to file their responsive brief within three days.

Despite the Court's clearly published scheduling order, the plaintiffs have failed to respond in any fashion to defendants' pending motions. Accordingly, the Court today resolves these pending matters on the basis of defendants' supporting briefs and its own understanding of the several immunity doctrines as applied to section 1983 actions.

Judicial Immunity And The Claims Against Defendants Eberlein, Schmidt, And Grover

As the Court observed in its order of February 14, 1984, dismissing sua sponte plaintiffs' attempt to join it as a party defendant in this action, the doctrine of judicial immunity has long been recognized as a bar to civil suits against judges for actions taken in their judicial capacities. See, e.g., Reed v. Village of Shorewood, 704 F.2d 943, 951 (7th Cir.1983) (judges have absolute immunity for damage suits based on their judicial rulings); Apton v. Wilson, 506 F.2d 83, 90 (D.C.Cir.1974) (judge is not liable for any injuries resulting from acts within his jurisdiction).

The doctrine arose because it was in the public interest to have judges who were at liberty to exercise their independent judgment about the merits of a case without fear of being mulcted for damages should an unsatisfied litigant be able to convince another tribunal that the judge acted not only mistakenly but with malice and corruption. Dennis v. Sparks, 449 U.S. 24, 31, 101 S.Ct. 183, 188, 66 L.Ed.2d 185, cert. denied, Duval County Ranch Company, Inc. v. Sparks, 449 U.S. 1021, 101 S.Ct. 588, 66 L.Ed.2d 483 (1980); Briscoe v. Lahue, 460 U.S. 325, ___ - ___, 103 S.Ct. 1108, 1115-1116, 75 L.Ed.2d 96, 107-108 (1983). Perhaps the best articulation of the doctrine is found in the Supreme Court's 1966 opinion in Pierson v. Ray, 386 U.S. 547, 553-554, 87 S.Ct. 1213, 1217-1218, 18 L.Ed.2d 288 (1967):

Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v. Fisher, 13 Wall. 335 20 L.Ed. 646 (1872). This immunity applies even when the judge is accused of acting maliciously and corruptly, and it "is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences" citations omitted. It is a judge's duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.

In its modern form, the doctrine provides that judges are immune from suit for judicial acts within or in excess of their jurisdiction even if those acts have been committed maliciously or corruptly. Stump v. Sparkman, 435 U.S. 349, 355-356, 98 S.Ct. 1099, 1104-1105, 55 L.Ed.2d 331 rehearing denied, 436 U.S. 951, 98 S.Ct. 2862, 56 L.Ed.2d 795 (1978), on remand, Sparkman v. McFarlin, 601 F.2d 261 (7th Cir.1979); Gregory v. Thompson, 500 F.2d 59, 62 (9th Cir.1974). The only exception to the sweeping cloak of immunity is for acts done in the clear absence of all jurisdiction, as opposed to acts merely in excess of jurisdiction. Harper v. Merckle, 638 F.2d 848, 858 (5th Cir.), cert. denied, 454 U.S. 816, 102 S.Ct. 93, 70 L.Ed.2d 85 (1981); Clark v. Taylor, 627 F.2d 284, 286 (D.C.Cir.1980).

Finally, the factors used in determining whether an act by a judge is "judicial" for purposes of conferring the immunity relate to the nature of the act itself— that is, whether it is a function normally performed by a judge—and the expectation of the parties—specifically, whether they dealt with the judge in his judicial capacity. Stump v. Sparkman, 435 U.S. 349, 362, 98 S.Ct. 1099, 1107, 55 L.Ed.2d 331, rehearing denied, 436 U.S. 951, 98 S.Ct. 2862, 56 L.Ed.2d 795 (1978), on remand, Sparkman v. McFarlin, 601 F.2d 261 (7th Cir.1979); see also Hampton v. City of Chicago, Cook County, Illinois, 484 F.2d 602, 608 (7th Cir.1973), cert. denied, 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471 (1974) (availability of immunity depends on character of conduct under attack).

Notwithstanding this absolute immunity afforded judges for actions taken in their judicial capacities, the complaint in this case charges State Circuit Court Judges Eberlein, Schmidt, and Grover with various violations of plaintiffs' constitutional rights, all arising out of the state's criminal prosecutions of the plaintiffs for assuming, without legal authority, to act as public officers in violation of Wis.Stat. § 946.69(1). In particular, Paragraph XIII of the complaint alleges that defendants Eberlein and Schmidt "did willfully and knowingly give aid and comfort to those ... other Defendants whose acts are subversive to the United States, and as such, are destroying our children, our homes, our churches, our schools, our businesses, our contracts, our money system, and our government...." Plaintiffs' Complaint at 9 (December 28, 1983).

Paragraphs XIV and XV charge defendants Schmidt and Eberlein with conspiring to deprive plaintiffs of their constitutional rights, although the precise nature of this deprivation is not made clear; Paragraph XVI alleges that defendant Schmidt, as...

To continue reading

Request your trial
10 cases
  • Grant, Konvalinka & Harrison, P.C. v. Banks (In re McKenzie)
    • United States
    • United States Bankruptcy Courts. Sixth Circuit. U.S. Bankruptcy Court — Eastern District of Tennessee
    • March 30, 2012
    ...out duties in the scope of their employment.No. 97–0348, 1998 WL 483485, at *2 (E.D.La. Aug. 13, 1998) (quoting Wickstrom v. Ebert, 585 F.Supp. 924, 934 (E.D.Wis.1984)). The Sixth Circuit and courts within this Circuit have consistently presumed that the trustee is acting within the scope o......
  • Day v. Durie Props., LLC, Case No. 08-18384 (MS)
    • United States
    • U.S. Bankruptcy Court — District of New Jersey
    • February 7, 2014
    ...police officers, clerks of court, referees and trustees in bankruptcy, and receivers appointed to conserve assets." Wickstrom v. Ebert, 585 F. Supp. 924, 934 (D. Wisc. 1984). "The trustee or receiver derives his immunity from the judge who appointed him." Mullis v. U.S. Bankr. Ct. for D. Ne......
  • Bausch v. Sumiec
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • April 10, 2001
    ...right if he performs or omits to perform an act that is legally required and that causes the deprivation. Wickstrom v. Ebert, 585 F.Supp. 924, 935 (E.D.Wis.1984). Kerr was decided in August 1996 when defendant Sullivan was the Department Secretary. The Secretary has supervisory authority ov......
  • Matter of Plunkett
    • United States
    • United States Bankruptcy Courts. Seventh Circuit. U.S. Bankruptcy Court — Eastern District of Wisconsin
    • February 28, 1985
    ...697 F.2d 789, 795 (7th Cir.1983). Examples of such abuse of the system were faced by the courts in McCandless and in Wickstrom v. Ebert, 585 F.Supp. 924 (E.D.Wis.1984). In McCandless, the court of appeals affirmed a district court finding of bad faith. The district court based its finding o......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT